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CR.A/41/1998 2/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 41 of 1998
For
Approval and Signature:
HONOURABLE
MR.JUSTICE C.K.BUCH
HONOURABLE
MR.JUSTICE D.N.PATEL
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
RAVSAHEB
@ RAVIRAJ VIKRAM PATIL - Appellant
Versus
STATE
OF GUJARAT & 1 - Opponents
=========================================Appearance
:
MR US BRAHMBHATT for the
Appellants.
MS D.S.PANDIT, APP for the
Opponent.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE C.K.BUCH
and
HONOURABLE
MR.JUSTICE DN PATEL
Date
: 29/12/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE DN PATEL)
1. This
Criminal Appeal has been preferred against the judgement and order of
conviction and sentence dated 31st December,1997 passed by
learned Additional Sessions Judge, Surat in Sessions Case No.15 of
1997, whereby the present appellants have been convicted for an
offence punishable under Section 302 read with Section 34 of the
Indian Penal Code and sentenced to undergo life imprisonment and to
pay a fine of Rs.2,000/-, in case of default, further simple
imprisonment for six months has been awarded. The appellants have
also been convicted for an offence punishable under Section 498-A of
the Indian Penal Code and sentenced to undergo rigorous imprisonment
for two years and to pay a fine of Rs.1,000/-, in case of default,
further simple imprisonment for three months has been awarded.
Against this judgement and order, the present appeal has been
preferred by the appellants.
2. The
appellants are facing charge of committing murder of Sunanda ? wife
of accused No.1. Deceased was forced to bring money from her parental
house. Likewise, on 4th November,1996, when appellant no.1
told her to prepare break-fast, deceased replied that it will take
some time and, therefore, appellants set the deceased to fire. This
is a charge, which they are facing in Sessions Case No.15 of 1997.
3. Learned
counsel for the appellants submitted that appellant No.1 is
absconding, as per report dated 23rd April,2002 given by
Inspector General of Police and also as per the report dated 28th
April,2008 recently received from Baroda Central Jail. It is also
submitted by learned counsel for the appellants that appellant No.2
has expired on 12nd October,2003. Learned Additional
Public Prosecutor has produced death certificate of appellant no.2
and submitted that death of appellant no.2 has been registered at
Village: Mangrul, Taluka: Parola, District: Jalgaon, Maharashtra. A
photocopy of the same is taken on the record of the case.
4. Looking
to the aforesaid submission and looking to the fact that appellant
No.2 has expired, appeal qua appellant no.2 is abated.
5. In
view of the judgement delivered by this Court vide order dated 17th
November,2008 passed in Criminal Appeal No.1375 of 1993 read with
judgement dated 23rd October,2008 delivered by this
Division Bench in Criminal Appeal No.1131 of 1997, as the appellant
No.1 is absconding, appeal qua appellant No.1 deserves to be
dismissed.
6. In
the decision dated 23rd October,2008 rendered by
this Division Bench in Criminal Appeal No.1131 of 1997, it has
been observed in para-8(vi) and 8(vii), as under:
?S8. (vi) …….
Thus,
deliberate action or positive action reveals the intention of the
appellant which shows that he has no respect to the Constitution of
India and he has committed breach of the fundamental duty enshrined
under Sub-article (a) of Article 51-A of the Constitution of India or
it also reveals intention of the appellant that he has no faith in
justice delivery system. ……… …….. Those,
who are expecting their criminal appeals against conviction, to be
heard on merits, cannot remain absconding. …..
(vii) ….. This
appeal is hereby dismissed only on the ground that the
appellant-accused is absconding and is not available to the Court,
nor is present in the Court. As and when he surrenders or is arrested
by the police, he may prefer an application for restoration of the
appeal. We do not want to encourage the absconding accused for
remaining absconding by hearing his criminal appeal on merits. It
also encourages, who are in jail to jump the bail or furlough.
Leniency shown towards criminals is a threat to innocent
persons……??
(Emphasis
supplied)
7. In
view of the aforesaid decision and also keeping in mind the fact that
the appellant No.1- original accused No.1 is absconding, the present
appeal qua appellant No.1 is dismissed only on this ground. As and
when appellant No.1 -original accused No.1 surrenders to the jail
authority or is arrested by the police, he is at liberty to prefer an
application for revival of this appeal and if such application is not
unreasonably excessively time-barred as stated in the aforesaid
judgement, then, this Criminal Appeal will be revived or restored.
8. For
the aforesaid reasons, as appellant No.1 ? original accused no.1 is
absconding, appeal qua appellant no.1 is dismissed. So far as
appellant No.2 is concerned, as appellant No.2 has expired, the
appeal qua appellant No.2 is treated as abated. This Criminal Appeal
is hereby disposed of accordingly.
[C.K.BUCH,J]
[D.N.PATEL,J]
*dipti
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